OIA tension raises questions over minister's request for information

Cabinet minister Gerry Brownlee sought information from the Office of the Ombudsman through the Official Information Act.

Tension over the rules governing the release of government-held information to the public have led to questions over a senior Cabinet minister's knowledge of the Official Information Act.

Minister of Foreign Affairs Gerry Brownlee told the Herald he had experienced "frustration" over uncertainty about when information could be released to the public and when it could be properly withheld.

In an effort to get more details, he sent the Office of the Ombudsman an Official Information Act request.

The problem? A basic principle of the OIA is that offices of Parliament - including the Office of the Ombudsman - are not covered by the legislation.

Documents released to the Herald show Brownlee's request failed to result in the documents he asked for and instead led to a meeting with Chief Ombudsman Judge Peter Boshier - who he called "Mr Boshier" throughout an interview on the issue with the Herald.

Herald: "It's Judge Boshier isn't it?"

Brownlee: "I don't think so."

Herald: "He's still a judge."

Brownlee: "You can call him what you want. I don't believe he has a warrant."

Judge Boshier - and, yes, he retains his title - would not be interviewed for this story but documents released through the Official Information Act show reflected tensions inside the Government.

He wrote that after meeting Brownlee he was "genuinely worried" the Government believed the rules had changed and the Office of the Ombudsman wanted "everything released".

Judge Peter Boshier, Chief Ombudsman.

The Official Information Act is designed to make ministers and officials accountable, and to allow the public greater involvement in the creation and operation of laws and policies.

But it has come under pressure in recent years with changes in government structure, practice and changes in technology.

As a result, a 2015 review by the Office of the Ombudsman found "ministerial officials pressured agencies to alter their responses" and mixed advice on how to respond to requests.

It followed a State Services Commission survey which found just 24 per cent of public servants were familiar with the Ombudsman's Official Information Act guidelines.

And it came after criticism over the Government's handling of OIA requests, including former Prime Minister John Key's admission the Government deliberately delayed releasing information if it suited its purposes to do so.

Brownlee told the Herald: "Of course I know the Office [of the Ombudsman] is not subject to the OIA.

"I was trying to make the point that if you want to have a truly free and open society... the Ombudsman's office is not a Star Chamber or an inquisitor. It's a body that's designed to treat all New Zealanders fairly and that means us [government] too."

He said he had "discussions with Mr Boshier that left me with questions" and he hoped the OIA request would provide answers.

The paper trail between Brownlee's office and the Office of the Ombudsman showed he made his OIA request after learning Boshier had overturned a decision by the Earthquake Commission (EQC) to withhold information being sought under the OIA. Brownlee is Minister Responsible for the EQC.

Brownlee referred to a statement that the Office of the Ombudsman intended to carry out a series of "proactive investigations" into OIA practices by those subject to the Act.

He stated that he sought "under the provisions of the OIA" any "memos, emails, phone records, meeting agendas, dates on which this matters was discussed and any other material relating to proactive ongoing investigations".

In response, Boshier said: "I am heartened by your interest in this area." While he added that he would "greatly appreciate the opportunity to discuss this with you in person", none of the information Brownlee sought was supplied.

Instead, Boshier and Brownlee met on September 8 in a conversation that left the Chief Ombudsman with a feeling of "unease".

The comment is revealed in an email from Boshier to Andrew Kibblewhite, chief executive of the Department of Prime Minister and Cabinet, who had a staff member at the meeting.

Boshier wrote: "Unless I am mistaken, there is a perception that our Office wants everything released. The Minister approached this meeting in quite a businesslike fashion, and I think the reason for that was a genuine perception that the rules have changed and that we are pushing for a wider range of ministerial advice and briefings to be released.

"I am genuinely worried about this perception."

He told Kibblewhite he hoped the briefing he got from his staffer showed "the rules have not changed at all".

Boshier took over the role in December 2015 and has been regarded by some as overseeing a sea-change in the Office of the Ombudsman, which was struggling under the burden of a massive workload and investigations which were long-delayed.

But his approach has caused nervousness in some parts of government after the office's support for the release of information traditionally believed to be safe from scrutiny.

That has included advice from officials, legal advice and other closely held material.

Brownlee told the Herald he felt "frustration", rejecting any suggestion his ill-aimed OIA request was placing pressure on the Office of the Ombudsman.

"I appreciate the importance of the OIA in a democracy," he said.

He said there was a lack of certainty around when information should be withheld from public release in cases of "free and frank advice" from officials - withheld so as to promote open advice to ministers - or commercial information, which was also considered sensitive.

He said he accepted everything that was done in government would be made public eventually - but some information needed to operate under a cloak to be most effective for citizens.

Auckland University of Technology lecturer Greg Treadwell, who has carried out doctoral research on the OIA, viewed Brownlee's letter to the Office of the Ombudsman and asked: "what's he doing?"

At first glance, he said it appeared Brownlee didn't know basic OIA principles even though he was approaching the end of a third term as Cabinet minister.

"This is why I think it is a deliberate shot across the bows. He appears to be angry with the Ombudsman's [EQC] decision and that seems almost inappropriate to start demanding voluminous amounts of information. That's not quite ministerial behaviour."

Labour's Megan Woods, who speaks on Canterbury issues, said during Brownlee's period as Minister for the EQC, people in Christchurch had resorted to using the OIA to get updates on their claims over earthquake damage.

"The ability to do that was hugely important to people."​